Marshall v. Hall

• Decision Date: 06 February 1918
• Docket Number: No. 2047.,2047.
• Parties: MARSHALL et al. v. HALL et al.
• Court: Missouri Court of Appeals

200 S.W. 770

MARSHALL et al. v. HALL et al.

No. 2047.

Springfield Court of Appeals, Missouri.

February 6, 1918.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Suit by J. H. Marshall and G. F. Brannock, doing business as the Matthews Sawmill Company, a copartnership, against Mamie Hall and J. N. Mills, administrator of the estate of H. H. Hall, deceased. Judgment for plaintiffs against the first-named defendant, and she appeals. Reversed and remanded.

Gallivan & Finch, of New Madrid, for appellant. E. F. Sharp, of Marston, for respondents.

BRADLEY, J.

This is a suit by respondents to recover judgment for $523.48, an alleged balance due, plus interest, and to have said judgment declared a lien on a certain house and lot of appellant, Mamie Hall, in the town of Matthews in New Madrid county. It is alleged that H. H. Hall, deceased, and plaintiffs entered into an oral contract whereby plaintiffs, sawmill men, and contractors, were to build an addition to the house upon which a lien is sought. Suit was brought against defendant Mamie Hall and Mills, administrator of the estate of H. H. Hall, deceased. Upon trial before the court and a jury, plaintiffs had judgment for $523.48 against defendant Mamie Hall, and this was declared a lien upon her house and lot; verdict and judgment went for the administrator. Defendant Mamie Hall duly filed motion for a new trial and in arrest, and, these being overruled, she has appealed to this court.

Plaintiffs' petition is as follows:

"Plaintiffs, J. H. Marshall and G. F. Brannock state they are a copartnership doing business at Matthews, Missouri, under the firm name and style of the Matthews Sawmill Company. Plaintiffs state that the defendant J. N. Mills is the duly appointed, qualified, and acting administrator of the estate of H. H. Hall, deceased. For their cause of action plaintiffs state: That the defendants are justly indebted to them in the sum of $523.48 for the materials furnished, the work and labor done by the plaintiffs at the request of defendant Mamie Hall and H. H. Hall, deceased, as per the following account:

                                     Matthews, Mo., Nov. 28, 1915
                   Mr. H. H. Hall, to Matthews Sawmill Co., Dr
                     Contractors and Builders, Manufacturers
                            Rough and Dressed Lumber
                  1915
                Nov. 28. To build house and cellar as per
                           contract ..........................    $765 00
                         2 extra windows in cellar............       2 00
                         4 gable windows in house.............       6 00
                         1 extra door on south side of house         4 50
                         1 extra door in partition wall.......       4 50
                         1 extra glass door in front of house        5 50
                         To rebuilding two old flues..........       6 00
                         To difference between painting and
                          canvassing and papering three
                          rooms ..............................       3 00
                         To build pantry .....................       6 50
                         To ceiling cellar overhead...........      16 50
                         To building two pieces of brick
                          walk and main gate .................      10 00
                         To one new lock on smoke house.......         80
                         To 470 feet of lumber at 10¢....       4 70
                                                                  _______
                                                                  $835 00
                         By nails, freight, and lumber
                          .............................  $ 11 52
                Sept. 15. By cash, check...............   200 00
                Oct. 20. By cash, check................   100 00
                                                         _______   311 52
                                                                  _______
                            Balance ............................  $523 48
                

"That said materials were furnished for and used in the construction of a certain dwelling house situated on the following described lot of ground, to wit: Lot No. 6 in the second addition to the town of Matthews, New Madrid county, Missouri, consisting of a tract of land containing 5.62 acres. That the property was at the day of furnishing said material and now is the property of the said defendant, Mamie Hall, and of the said H. H. Hall, now deceased, and that the contract for the erection of the said dwelling house was made with the said H. H. Hall, and with the counsel, knowledge and approval of the said Mamie Hall. That the said demand became due on the 28th day of November, 1916, and that within six months thereafter, to wit: on the ____ day of February, 1916, plaintiffs filed their said account in the office of the clerk of the circuit court within and for the county of New Madrid, duly verified by an affidavit, giving the description of the property to be charged with the lien, stating the amount due after all just credits had been given, and describing the said Mamie Hall and H. H. Hall, now deceased, as the owner and contractor. Whereas, plaintiff prays judgment against defendants for the sum of $523.48, with interest thereon from the 28th day of November, 1915, at the rate of 6 per cent. per annum, and that the same be declared a lien against the property above described."

Defendants filed separate answers which were general denials.

Plaintiffs, a copartnership, were doing business under the name of Matthews Sawmill Company, and in addition to manufacturing and selling lumber they, it seems, took contracts to build. It does not appear when H. H. Hall and defendant Mamie Hall were married, but it does appear that at the time of the marriage, defendant Mamie Hall was not living in the house to which the addition was built. At the time of the marriage Mrs. Hall was living in another house, and was renting out the house in question; but shortly after the marriage they moved into the house located on lot No. 6, containing 5.62 acres in the second addition to the town of Matthews, being the one upon which plaintiffs are seeking to establish a lien. Some time after moving into this house H. H. Hall, husband of defendant, made an oral contract with plaintiffs for the building of an addition of some sort thereto. The contract price as appears from the lien account in the record was $765; but plaintiffs claim extra work and materials amounting to $70. Payments had been made and credits given, reducing the account to the amount sued for. It does not appear when H. H. Hall died, but it might be inferred from the evidence that he died some time between October 20, 1915, and February 1, 1916, date when defendant was served with notice of intention to file lien. Plaintiffs claim that the work was finished on November 28, 1915. When H. H. Hall died might seem irrelevant, but one theory of plaintiffs is that the contract to build was made with H. H. Hall with the counsel, knowledge, and approval of defendant, as appears in their petition; and another theory, as appears in their instruction, that the improvements were made for the immediate use, enjoyment, and benefit of defendant, therefore her conduct with reference to the improvements before her husband's death could not be considered under the same rules as after his death. In the first instance what she may have said or done towards directing changes, etc., in the progress of the work before her husband's death might be construed to be no more than a wifely interest in her husband's affairs, but what she did subsequent to his death with respect to directions, changes, etc., could have no such construction. Plaintiffs do not especially stand upon any theory, but say that they built a house on defendant's lot, and that she ought to pay for it. Appellant makes many assignments of error, among which are: (1) The court erred in permitting plaintiff, J. H. Marshall, to testify as a witness under the allegations of the petition, which alleged the contract was made with H. H. Hall and alleged the death of said Hall; (2) the court erred in permitting Mrs. Hall to be cross-examined as to conversations with her deceased husband; (3) the court erred in admitting in evidence the account sued on when there was no evidence as to the correctness of the same or the execution of any contract as alleged in the petition and set out in the account; (4) the court erred in giving instruction No. 1 on behalf of the plaintiffs. As this cause must be reversed and remanded, we will consider only the assignments which might prove troublesome on a new trial.

There is no doubt but that error was committed in permitting J. H. Marshall, one of the plaintiffs to testify as to the contract and the balance due thereunder. It was conceded that Hall was dead, and that whatever contract plaintiffs had was made with H. H. Hall. Yet it was by this witness that proof of the contract was made, and the payments thereon by Hall, and the balance due. Appellants practically concede that this was error, and make no attempt to justify the admission of this evidence, except possibly, as we gather from their brief, that, conceding this evidence to be incompetent, it is of no consequence, because defendant signed a statement of account like the one appearing in the petition, and said she supposed it was correct. The circumstances under which she signed this statement as given by plaintiff, Marshall, are:

"About the time the work was completed I made out this statement and carried it by there and went to Mrs. Hall—I don't know that I can repeat exactly the words that she said or I said, but I can get you about the understanding of it. I told her she was the only one that could accept it, and I asked her if she would accept the work, and she said, why, she would accept, and she also accepted the work and signed this bill, and we went on and talked about the pay and so on, and she told me she thought the estate ought to pay the bill and so on down the line; that she knew she owed it; she didn't deny the debt, and said if the estate didn't pay the bill she would."

Of this defendant says:

"Q. He told you that was the bill for building the house, didn't he? A. Of...